Prosecutions for the services

SoldiersThe DSP is to the Armed Forces what the DPP is to civilians. Bruce Houlder QC DL, the first Director of Service Prosecutions, reflects upon his years in the role.

In May 2008, after some 39 years at the Bar, I took up the challenge to create a new prosecuting authority for the Armed Services, and thus became the first Director of Service Prosecutions (DSP). The role was created by the Armed Forces Act 2006 which wrought significant changes to the service justice system. I am glad I took the leap. I have worked alongside intelligent, well motivated servicemen and women, and have been left with an enormous respect for the role they play in support of Service law and discipline, in the advisory sector, on operations, and as prosecutors. Initial difficulties and some avoidable obstructions were soon swept away, and a well respected joint prosecuting authority has emerged.


An induction into Service life

My own journey started with the most necessary induction into the life and work of the three Services. This included trips to Iraq and Afghanistan as well as to other parts of the world. By the time this lengthy process ended, comparatively few in the Services would be able to claim to have seen all that I had seen however briefly. Of course I have not experienced combat, but it is possible, with imagination, and with the introduction all three Services ensured that I received, to come close to a picture of the fear and horrors that our Servicemen face. That understanding is vital. It is not the DSP’s job to second guess a decision made in the heat of conflict, with little or no time for consideration. Terrible mistakes will occur. The law is there to deal with those who do not respect it, not those who face those who have no such respect, and yet do their best.

I wrote to all the commanders who hosted me during this period to reassure them of this. Some of these words now appear in an Army training manual. I have since learnt that that was a vital reassurance, and should lay to rest the fears of experienced soldiers, and a few in Parliament, who feared a civilian could not do the job. In our decision making we take into account the views of those concerned with the maintenance of Service discipline of course, and no one should think that our decisions ignore these views. On one or two occasions only we have had to field some judicial comment about our decisions. These however have not been informed by such discussion, or the additional information the prosecution sometimes possess, nor would it be right to share such discussions, given the separation of powers in this field.

SPA and its structure

The Service Prosecuting Authority (SPA) is now genuinely tri-Service. Officers may prosecute a case from another Service, unless good reasons exist for specialist experience. The Royal Navy use only barristers. They come to our HQ at RAF Northolt with several years’ command under their belts, after having competed for selection for training as barristers. The RN sees that they are provided with pupillages in the Temple or on circuit, as well as some time with the CPS. This does not diminish the contribution of the Army and RAF lawyers, who provide highly skilled and well qualified solicitors, but fewer from the Bar. Some have left the magic circle firms to join the Services for a more stimulating life. I know now why they did so. Of course most will never have prosecuted, some perhaps never wished to, but career planning demands they spend time as prosecutors. Prosecuting is generally considered to be vital training for a well rounded officer who will be required from time to time to make real life and death decisions, be able to articulate them, and be right in the judgments they make. The more senior will have prosecuted on and off throughout their careers. One or two could now be candidates for Silk – something I would love to see happen, and for the Services to support.

Specialist Training

All now receive the benefit of a comprehensive in-house training programme. There are two major programmes in contested and non-contested advocacy which sit alongside regular seminars in specific subjects central to their role. Each officer has a personalised and monitored programme. Most now leave the SPA genuinely pleased with the experience they gained, and the time they had, during their posting. Service life sits side by side with family and social life. The atmosphere, ethic, and mutual personal respect that such a life engenders amongst the officers are all beneficial in a working environment. They work alongside a loyal civilian staff, many of whom have been in prosecutions for many years and have much to offer the younger officers in return.

Training is key. Best practice is now instilled into everything we try to do. The message from the Court Martial, as well as from lawyers who defend there, is that the product of such training shows. This momentum will be maintained. In 2010, HMCPSI reported on the new SPA, and gave us scores which would be the envy of other prosecuting agencies in most areas of our activity. This was particularly true in our decision making, charging, and in the treatment of victims and witnesses in serious, sexual and domestic crime. All our officers are proud of this. One of our officers, an experienced Lieutenant Colonel, now trains members of the Bar in advocacy at the South East Circuit Summer Course at Keble College.

The work load in close up

Our workload is surprisingly varied. Alongside the more serious stuff, there is the whole gamut of Service offences – everything from being AWOL, or the negligent discharge of a firearm, to sleeping on duty. We also prosecute more familiar crime, including rape and homicide. Soldiers do as others do, once off the leash. Violence is an issue, and given what soldiers experience, this is not always surprising. Alcohol, when not on operations, lies at the root of much antisocial offending. Our jurisdiction is a worldwide one encompassing all those who fall under Service law and discipline, including civilians overseas. Alongside the Court Martial there is the Service Civilian Court and the Summary Appeal Court. The latter hears appeals from summary hearings held before a commanding officer. Summary appeals are heard before fully ECHR compliant courts presided over by Judge Advocates. Appeals against sentence and conviction are heard before the Court Martial Appeal Court comprising justices of the civilian Court of Appeal. All accused are entitled to legal aid, the judges of the Court Martial are civilians, and the processes largely mirror those of the civilian courts. Case management remains equally important, and compliance is expected.

Changing times

The SPA has been an instrument of change. I represent the SPA on the overarching Service Justice Board, presided over at Ministerial level within the MOD and attended by the Solicitor General. The DSP acts, like the DPP, under the general superintendence of the Attorney General. The SPA is not answerable to the MoD for its prosecutorial decisions and actions. This is a vital and carefully protected separation.

I am sure that the service justice system has improved in several respects as a result of the landmark changes made in 2006, and given effect in 2009. It deserves a strong reputation for delivering fair and impartial justice for the Services. There is also much closer working with the service police and the CPS. The level of pre-charge advice we now give has risen exponentially since 2009. In June this year we were instrumental in launching the Early Guilty Plea Scheme for the Services, now being piloted successfully at the Court Martial Centre at Sennelager in Germany. The SPA has its own office nearby in Bielefeld.

Whilst change is still necessary, my own opinions will be more effective if offered in private, rather than on the pages of Counsel. As a comparative outsider, it is sometimes possible to see with greater clarity where things are going wrong. When I travelled into operational theatre with a Vice Admiral in 2008, he advised me never to forget this advantage, and never hesitate to make my opinion heard. I have tried to do so, and I hope, to do so reflectively. In short this is a tremendous job for a lawyer who wants something unusual from a career in the law. Independence remains at the core of the role. There is never a day when I have not wanted to go to work. What more can anyone who has enjoyed a full life at the Bar say.

Bruce Houlder QC DL, Director of Service Prosecutions, Service Prosecutions Authority.

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